Discussion of Family Law Appeals in Harris, Montgomery, Fort Bend, Brazoria Counties & Across Texas

Opinions, Sept. 15, 2015

The Fourteenth Court of Appeals released two memorandum opinions in parental rights termination cases this morning, in In re A.A.L.A., F.K.A., and C.M.A., No. 14-15-00265-CV and In re S.S.B. and R.D. III, No. 14-15-00352-CV. In both cases the trial court’s termination of the parental rights was affirmed.

In In re A.A.L.A., F.K.A., and C.M.A., the father but not the mother appealed termination of rights to the couple’s three children. Father asserted five issues challenging the legal and factual sufficiency of the evidence. Father had been incarcerated since 2009 while the three children lived with Mother. After being evicted from her apartment, Mother and the children stayed with a friend. Then Mother evidently fled in the friend’s car, leaving the children with the friend. The friend brought the children to the police station and reported his car stolen. Mother was apprehended. The DFPS took possession of the children in June 2013. The Mother was candid with the DFPS about her drug use and said the children would be better off without her.

Father was paroled in December 2014 and trial was held on January 28, 2015, at which Father was present and represented by counsel. At the end of the trial, the associate judge found both parents committed acts establishing predicate termination grounds under Tex. Fam. Code sec. 161.001(1), subsections D, E, and M and that termination was in the children’s best interests.

Under subsection M, a previous termination of parental rights to another child premised on subsections D or E (endangerment of the child) is sufficient predicate. In other words, subsection M effectively provides that D and E have a ripple effect: once an endangerer, always an endangerer. Father’s rights previously had been terminated to another child in 2004 under subsection E, a fact not challenged by the Father in either the trial court or on appeal. The Court of Appeals noted that since M was stipulated, it need not address the Father’s challenges as to D and E. Father urged on appeal, however, that the Court of Appeals should review the D and E findings for fear of the negative collateral consequences those findings may carry in the future–i.e. that those endangerment findings would support termination of his rights, per subsection M, in a future termination proceeding. Father argued he was entitled to review of the endangerment findings as a matter of due process.

The Court of Appeals stated Father’s incarceration when the proceeding began supported an endangerment finding, even if the 2004 termination was disregarded. Yet, “remembering that involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights,” the Court of Appeals agreed that where two termination proceedings are more than a decade apart, the potential negative collateral consequences of the 2015 termination warranted review of the D and E findings. The Court of Appeals was careful to limit its decision to the facts of this case, stating it was not addressing whether the collateral consequences doctrine applies in every parental termination + endangerment case.

Somewhat perplexingly, the Court of Appeals also stated it did not

address the broader question of whether the collateral consequences doctrine has a place in parental termination cases at all, given that the existence of a future termination proceeding will depend on the parent’s conduct, which is within the parent’s control, and the concept of collateral consequences generally refers to matters beyond a person’s control.

Despite its statement that it was not stating whether the collateral consequences doctrine applied in parental termination cases, it clearly applied the concept to this case to at least analyze the legal and factual sufficiency of the endangerment findings. The Court of Appeals appears to be leaving the door open a crack on this issue.

Turning to the endangerment findings, the Court of Appeals summarized the Father’s lengthy criminal history and his knowledge of Mother’s drug use and concluded the evidence was legally and factually sufficient to support the D and E findings.

In In re S.S.B. and R.D., III, the mother and father separately appealed the trial court’s termination of their parental rights to the children. The Court of Appeals addressed each parent’s appeal individually.

The mother’s parental rights were terminated on the grounds of D, E, M, and O. Her attorney filed an Anders brief, alleging the appeal was frivolous and without merit. The Court of Appeals agreed.

As for the Father’s appeal, though the trial court found grounds for termination under under D, E, and O and the trial court’s findings that termination was in the child’s best interest (Father was the father of R.D. III only, not of S.S.B.), the father appealed only the O and best interest findings.

Trial was held in March 2015. The father was was 22 at the time, lived with his grandmother, and had tested positive for drugs five times in 2014 and entered rehab in December 2014. He testified that he chose drugs over his child. Father testified he had attended over 40 Narcotics Anonymous meetings since leaving rehab in January 2015; that he was participating in outpatient therapy at the time of trial; attending relapse therapy twice a week; had enrolled at Houston Community College; was employed full time; and had attended all scheduled visits with the son.

Nevertheless, the caseworker testified the children had been placed with the Father’s mother, but were removed for medical neglect. The Father’s mother wanted the daughter removed because she could not handle her behavior, but the DFPS wanted to keep the children together. The caseworker also testified that the father failed to complete the recommendations from his psychosocial evaluation, failed to maintain six months of stable employment or housing, and had not met the requirement to attend ninety NA meetings in ninety days. The caseworker did not believe the Father had completed his family plan of service. Based on Father’s continued drug use through the pendency of the case and his failure to complete his plan, the DFPS recommended termination.

Because the father did not challenge the trial court’s D and E findings, the Court of Appeals upheld the predicate grounds without addressing Father’s challenge of the O finding.

The Court of Appeals reviewed the Father’s challenge to the best interest finding and the record and found the evidence was legally and factually sufficient to support the trial court’s finding that termination was in the child’s best interest.